Three years after granting review, the California Supreme Court finally announced that it would hold argument in Brinker Restaurant Corp. et al. v. Superior Court (No. S166350) on November 8, 2011. The California Supreme Court’s decision, which will issue within 90 days of oral argument, is highly anticipated because it is expected to define key aspects of California’s meal and rest break laws and determine to what extent meal and rest break class actions are available to employees. Rex S. Heinke, co-chair of Akin Gump’s supreme court and appellate practice group, will argue for Brinker.

Most critically, the court will decide whether California’s Labor Code means that employers must provide their employees a 30-minute, uninterrupted meal period for every five hours they work, or whether employers mustensurethat their employees take a 30-minute uninterrupted meal. Brinker’s argument that meal periods need only be “provided” relies on the plain language of the California Labor Code.1

A decision on whether an employer’s obligation is to “provide” or “ensure” meal periods will impact the feasibility of a meal period class action. If, as the court of appeal held, the Labor Code requires that employers need only “provide” meal periods, whether any particular manager at any particular restaurant on any particular shift discouraged or prohibited a break can be determined only on an individual basis, not classwide. If, however, employers must “ensure” that meal breaks are taken, meal period claims can be more easily litigated based on employers’ policies.

The other issues before the court relate to the proper timing of meal and rest periods. As to meal periods, Brinker maintains that a first meal must be provided to employees working “more than five hours per day,” and a second meal must be provided to employees working “more than 10 hours per day”,2 while plaintiffs argue that employers must give their employees a meal break every five consecutive hours. Thus, according to plaintiffs, the second meal period must be scheduled within five hours after the end of the first.

Finally, there are two issues about the proper timing of rest periods. First, must employers determine the “total hours worked daily” and authorize rest periods “at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof,” as the Wage Order3 requires, and as Brinker maintains, or must employers time rest periods at the two-hour, six-hour and 10-hour marks of an employee’s shift, as plaintiffs claim? Second, must a rest break be permitted in the middle of each four-hour work period “insofar as practicable,” as the Wage Order4 states, and as Brinker maintains, or must a rest break invariably be permitted before the first meal period—even when the first meal period is scheduled early in an employee’s shift— as plaintiffs argue?

1 Lab. Code, § 512, subd. (a) (stating that an employer must “provid[e]” its employees with a 30-minute meal period); Lab. Code, § 226.7 (stating that “no employer shall require any employee to work during any meal” and penalizing employers for “fail[ing] to provide an employee a meal period”). Plaintiffs, however, rely on a Wage Order stating that “[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . .” 8 Cal. Code Regs., § 11050(12)(A).